Horn Law Officeshttps://klhlawoffice.com
Iowa Attorney and Counselor at Law
Fri, 22 Feb 2019 16:28:33 +0000 en
hourly
1 http://wordpress.com/https://secure.gravatar.com/blavatar/8dc3b78fc2c8d8d9638ed5b3d29ff3ea?s=96&d=https%3A%2F%2Fs0.wp.com%2Fi%2Fbuttonw-com.pngHorn Law Officeshttps://klhlawoffice.com
6 Law Misconceptions about Wills and Powers of Attorneyhttps://klhlawoffice.com/2017/05/11/6-law-misconceptions-about-wills-and-powers-of-attorney/
https://klhlawoffice.com/2017/05/11/6-law-misconceptions-about-wills-and-powers-of-attorney/#commentsThu, 11 May 2017 21:29:34 +0000http://klhlawoffice.com/?p=93920No one likes to talk about death and few people like to talk about money, so it’s no surprise that misconceptions about wills and powers of attorney have materialized. If you’ve ever wondered if you need a will or what’s the difference between a power of attorney and a living will, this should answer your questions — and clarify six common law misconceptions we’ve heard at Horn Law Offices.

First, let’s start by defining a key term: probate. You’ve probably heard of the term but aren’t sure exactly what probate is and what it means. Probate is the legal process for paying your debts and distributing property after your death. When you die, your debts will have to be paid before your beneficiaries can inherit your property. Probate can take a few months to several years, depending on the size of the estate and whether anyone challenges the will.

Before we dive into the misconceptions, let me be clear: I am an Iowa attorney, so all of my clarifications below are based on Iowa laws. To learn more about probate, wills, and power of attorney laws in your state, please contact a lawyer in your area.

Misconception 1: Only elderly people have to worry about creating a will.

Older people tend to have more property to pass through their will upon their death, but young people have something more valuable to worry about — custody of their minor children. A will allows parents to name the person(s) they want to raise their children in the event of their death. The court gives great weight to the people nominated by the parents in their will and will usually follow the parents’ wishes as long as the people are fit to have custody.

Misconception 2: A power of attorney and a living will are the same thing.

Let’s define a couple more legal terms before we explain the difference between a power of attorney and living will. The person who grants authority to someone under a power of attorney or living will is the “principal,” and the person who is given the authority to act is the “agent” or “attorney-in-fact.”

Principals can grant two types of powers of attorney: medical and financial. A financial power of attorney allows the agent to make decisions regarding the principal’s money. A medical power of attorney allows the agent to make medical decisions if the principal is incapable of making decisions on his own behalf.

A living will is a slang term for an advance healthcare directive, which allows you to make sure your wishes are carried out in the event you’re placed on life support. An advanced healthcare directive states that you do not want to be kept alive on life support if there is no medically reasonable chance of recovery. The directive overrides the wishes of the agent in the event of a disagreement.

Misconception 3: Creating a will avoids probate.

This common misconception was probably started with wishful thinking, but creating a will does not avoid probate. A will is the foundation for probate. It tells the court and your executor — the person appointed by a will to act on the behalf of the estate — what you want to happen to your property, who you want to oversee the process, and what authority you’re giving them.

There are ways to avoid probate, such as creating a trust or owning property as joint tenants with full rights of survivorship. Joint tenancy with full rights of survivorship is when two or more individuals own a piece of property and the surviving tenant immediately becomes the owner of the whole property upon the death of the other tenant.

If avoiding probate is your goal, talk with an attorney in your area about your options.

Misconception 4: If I don’t have a will, my family will get nothing, and my property will go to the state.

This is not true. If you die without a will, your property will pass through what is called “intestacy,” which means your property will be passed according to state law.

Generally, when a person dies, the property is passed to the spouse. If the spouse is dead, the property is passed to the couple’s children. If the children are dead, the property is passed to the grandchildren, etc.

If there are no children, the property will go to the deceased’s parents if they are still living. If the parents are dead, the property is passed to siblings. If the siblings are deceased, the property will go to nieces and nephews.

In short, if you die without a will, your property will go to blood relatives if they are alive and can be located. The order may vary from state to state, so check with an attorney in your area for details.

Misconception 5: A power of attorney gives the agent unlimited power, even after the principal’s death.

The power of attorney can grant the agent a great deal of power, but it has limits. A financial power of attorney only allows an agent to make financial decisions. A medical power of attorney only goes into effect when the principal can no longer make medical decisions.

All powers of attorney end upon the principal’s death, and control is transferred to the executor of the estate. Often it is the same person, but the executor has to be appointed by the court before they have the power to act. If the deceased has named a preferred executor in the will, that’s seen as a nomination until the court officially appoints that person.

Misconception 6: My life insurance will be disbursed as I have requested it in my will.

A life insurance policy will not be overridden by what is in a will. Life insurance is a contract between you and the insurance company. Upon your death, the life insurance company will pay the money to your named beneficiary pursuant to the terms of the policy. So, if you leave everything in your will to your spouse, but the life insurance policy lists your kids as beneficiaries, the life insurance will be paid to your children.

On the plus side, life insurance is usually paid quickly, whereas a will can take several months to go through the probate process.

If you need to create a will, power of attorney, or advanced healthcare directive, please schedule a free initial consultation with Horn Law Offices by calling (515) 283-2330, emailing michael.a.horn@gmail.com, or submitting a contact form on our website.

If you found this information helpful, please share it with your Iowa friends and like Horn Law Offices on Facebook to receive more legal tips.

Disclaimer: This article is for educational purposes only. It is meant to give you general information and a basic understanding of the law, not to provide legal advice. By using this website, you understand that there is no attorney/client relationship between you and the publisher and any statement is solely the author’s. This website or article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction. This article is not published for advertising or solicitation purposes. Regardless, the hiring of a lawyer is an important decision that should not be based solely upon advertisements.

]]>https://klhlawoffice.com/2017/05/11/6-law-misconceptions-about-wills-and-powers-of-attorney/feed/1wills-probate-powers-attorneyklhlawoffice5 Law Misconceptions Debunked: How Custody Really Workshttps://klhlawoffice.com/2017/03/13/5-law-misconceptions-debunked-how-custody-really-works/
https://klhlawoffice.com/2017/03/13/5-law-misconceptions-debunked-how-custody-really-works/#commentsMon, 13 Mar 2017 20:51:20 +0000http://klhlawoffice.com/?p=93904Horn Law Offices practices in Family Law, which includes divorces, custody, and child support. Many potential clients come in for their free initial consultations with ideas about how the custody process is going to work, and unfortunately, they’ve based their plans on misconceptions about the law or what friends told them happened in their cases.

There are some types of cases where a friend’s situation may be similar enough to your own that you may get an outcome in court that resembles his or hers. But, divorce cases, custody hearings, and child support amounts are too dependent on the unique factors of your relationship. You can’t assume that because your friend got full custody and receives a hefty child support sum every month that you will, too.

I have been confronted with the following law misconceptions repeatedly, and I think it’s important to debunk them. But, before we get started, let me be clear: I am an Iowa attorney, so all of my clarifications below are based on Iowa laws. To learn more about custody laws in your state, please contact an attorney in your area.

Misconception 1: My spouse kicked me out and wants a divorce. I’m worried about losing custody of my kids because I left and it looks like abandonment.

All states recognize no-fault divorce. This means that a spouse does not have to show that the other spouse did anything wrong in order to obtain a divorce. The court does not expect you to remain in a horrible relationship and stay in the same house while you’re divorcing for the sake of your children. The important thing is to remain in contact with your kids and to continue your relationship with them. If your spouse will not let you see your children because you left the home, you can obtain a court order that allows for custody and visitation while your divorce is pending.

Misconception 2: I was awarded primary care, so I will get a large amount of child support.

Most states have established child support guidelines that determine the amount that will be paid in each case, but every state has a different calculation method. Iowa’s Child Support Guidelines can be broken down into three steps:

Step 1. The state looks at mom and dad’s gross income, minus certain deductions for taxes and a few other expenses. The parents’ living expenses are not factored into the Iowa Child Support Guidelines.

Step 2. The state then estimates the total amount that a couple would spend raising the child while making the amount of income established in Step 1.

Step 3. The state divides the total amount from Step 2 based on each parent’s proportion of the income. So, if dad makes two-thirds of the income, mom makes one-third, and mom has custody, dad will have to pay mom two-thirds of the amount.

For example, if a couple has one child, mom makes $30,000 per year, and dad makes $50,000 per year and pays $100 per month for the child’s health insurance, the state calculates that the parents should spend $1,044 per month raising one child. Dad would be ordered to pay child support of $592 per month to mom if she has primary custody.

Misconception 3: If I get 50/50 custody, I won’t have to pay child support.

If you’re granted 50/50 custody, which is known as shared physical care, it refers to equal parenting time with the children, not how much you’ll have to pay in child support. Just because you have 50/50 custody, that does not mean that everything equals out and you will not have to pay child support.

In a shared physical care arrangement in Iowa, the state’s child support guidelines first determine the amount each party would have to pay the other if one person had custody. Then, the amounts are offset against each other. Using our previous example, dad would pay mom $123 per month in child support for 50/50 custody. While this is significantly less than $592 per month, he still has to pay child support.

Misconception 4: As the mom, I’ll automatically get primary care.

There is no automatic gender preference when it comes to custody. Historically, women tended to be the primary caregivers for children, so that gave them a leg up in custody situations, but nowadays, there are many cases where men are the primary caregivers for the children and win full custody.

2. Whether the psychological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents.

3. Whether the parents can communicate with each other regarding the child’s needs.

4. Whether both parents have actively cared for the child before and since the separation.

5. Whether each parent can support the other parent’s relationship with the child.

6. Whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition to it, taking into consideration the child’s age and maturity.

7. Whether the parents agree or are opposed to joint custody.

8. The geographic proximity of the parents.

9. Whether the safety of the child, other children, or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation.

10. Whether a history of domestic abuse exists.

Unless you have solid proof that the other parent is unfit and incapable of caring for the children, he or she is going to be awarded, at the very least, the minimum visitation schedule, which is generally every other weekend and one overnight during the week. You can be punished for refusing to allow visitation when it’s court ordered in your divorce decree. If you have concerns about your spouse having visitation, it is important to speak with an attorney. You can ask the court to impose restrictions on visits, such as eliminating overnights and/or requiring a third party to be present.

If you found this information helpful, please share it with your Iowa friends and like Horn Law Offices on Facebook to receive more legal tips.

Disclaimer: This article is for educational purposes only. It is meant to give you general information and a basic understanding of the law, not to provide legal advice. By using this website, you understand that there is no attorney/client relationship between you and the publisher and any statement is solely the author’s. This website or article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction. This article is not published for advertising or solicitation purposes. Regardless, the hiring of a lawyer is an important decision that should not be based solely upon advertisements.

]]>https://klhlawoffice.com/2017/03/13/5-law-misconceptions-debunked-how-custody-really-works/feed/1custody-law-mythsklhlawoffice3 Steps to Start the Process of Filing for Bankruptcyhttps://klhlawoffice.com/2017/02/22/3-steps-to-start-the-process-of-filing-for-bankruptcy/
https://klhlawoffice.com/2017/02/22/3-steps-to-start-the-process-of-filing-for-bankruptcy/#commentsWed, 22 Feb 2017 20:52:10 +0000http://klhlawoffice.com/?p=93887The process of filing for bankruptcy can seem as overwhelming as making the decision to file bankruptcy itself, but it does not have to be. Horn Law Offices can walk you through all the steps.

Step 1

This step is one of the biggest and most important. Your bankruptcy consultation and drafting your petition will go much smoother if you compile the following information before you make an appointment with our firm:

1. Copies of your last two years’ tax returns or tax transcripts that show any balance owed to the IRS.

2. Pay stubs from the last 60 days for you and your spouse, if applicable.

4. Documentation of your secured debts, such as mortgage and car statements

5. Credit counseling and the pre-filing bankruptcy certificate for you and your spouse, if any. You can schedule your credit counseling one of two ways: 1) contact Consumer Credit of Des Moines at 515-287-6428; or 2) go to Abacus Credit Counselingand use attorney code ACC20107. Counseling needs to be completed within 180 days before filing bankruptcy.

6. A current bank statement. An Internet printout is sufficient.

7. A current retirement account statement. An Internet printout is sufficient.

8. The state filing fee of $335 and attorney fee of $800, for a total of $1135, in cash ormoney order; no checks or credit cards will be accepted.

Please feel free to contact us if you have any questions about the documents.

Bring all of the necessary documents to your appointment; otherwise, it could delay the process.

Horn Law Offices will walk you through the remaining steps of the process, from deciding which bankruptcy you qualify for—Chapter 7 or Chapter 13—to resolution. Filing for bankruptcy is stressful, but we will do our best to make each step go as smoothly as possible.

Disclaimer: We are a debt relief agency. We help people file for bankruptcy under the bankruptcy code. This article is for educational purposes only. It is meant to give you general information and a basic understanding of the law, not to provide legal advice. By using this website, you understand that there is no attorney/client relationship between you and the publisher and any statement is solely the author’s. This website or article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction. This article is not published for advertising or solicitation purposes. Regardless, the hiring of a lawyer is an important decision that should not be based solely upon advertisements.